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Although the dispute between India and Italy seems to have been abated for now, a closer look at the Supreme Court’s judgment of 18 January 2013 finding that India had jurisdiction to prosecute the marines is important. Chief Justice Kabir and Justice Chelameswar delivered separate but concurring opinions. In its judgment, the Court found that India had jurisdiction over the Italian marines. Specifically, the Court – reasoning through a curious blend of international and domestic law – quashed the proceedings before the Kerala High Court, directing the federal Government to set up a special court to try the marines. Interestingly, however, the Court refused to answer whether the marines enjoyed immunity by virtue of their status as members of the Italian armed forces (presumably leaving it for the trial court to decide the issue).

Readers would remember that the Kerala High Court had earlier dismissed Italy’s arguments on the extra-territorial application of the Indian Penal Code (IPC) and the Suppression of Unlawful Activities Act, and sovereign immunity of the two marines before Indian courts. The same contentions were raised before the Supreme Court (Italy’s arguments are summarized from paragraphs 13-46; India’s from 47-71; and, the state of Kerala’s from 72-81).

The questions before the Court were simple enough: did India lack jurisdiction to try the marines? If not, could this case be tried by the State of Kerala or the Indian Union? In formulating the issues, the Chief Justice (paragraph 82) and Justice Chelameswar (paragraph 2) oddly excluded the issue of sovereign immunity, despite arguments raised by Italy (paragraph 42) and India (paragraph 66) specifically on that point.

Addressing the question of territorial jurisdiction and that alone, the Chief Justice’s primary opinion proceeded along two lines of argument (given the finding that the incident occurred 20.5 nautical miles off the Indian coast, in the Indian contiguous zone): first, whether Kerala – as a federal unit within the Indian Union – had the jurisdiction to try the marines; and second, whether the Indian Union (India itself) possessed that competence.

(As a preliminary note, given that a negative conclusion on the second question would have precluded any discussion on the first, the judgment should perhaps have addressed the questions in the reverse order. In fact, in addressing the first question, the Court reached the conclusion that “the Union of India (is entitled to) to take cognizance of, investigate and prosecute persons who commit any infraction of the domestic laws within the Contiguous Zone.” (para 84) Having said this, the Court has already assumed a positive answer to the second question, which it then subsequently ‘considered’ for the remainder of the judgment.)

That apart, the first issue before the Court revolved around the effect of Notification No. SO 67/E (1981) under the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (“TW Act”), which extended the application of the IPC to the Exclusive Economic Zone (“EEZ”). The Chief Justice concluded that though the Maritime Zone Act extended the application of the IPC to the EEZ (and thus the Contiguous Zone), the incident lay beyond the territorial jurisdiction of Kerala, which coincided with its territorial waters. The effect of the Notification then was to extend the powers of the Indian Union, and not of a federal unit within it. (A) Similarly, the Court held that the inclusion of Section 188A to the Code of Criminal Procedure (which extends Indian criminal jurisdiction to the EEZ) does not expand Kerala’s local jurisdiction and fails to justify the prosecution in the courts of Kerala. Equally, the Court considered this conclusion proper as a dispute between two nations took the matter “to a different level”, making a federal unit’s involvement incorrect as a matter of law. (B)

On the second question, the Court correctly identified the issue as whether India can exercise penal jurisdiction in its contiguous zone outside the limited rights granted under Article 33 of the UNCLOS. The Chief Justice’s judgment seems to rely primarily on the decision in Lotus (discussed previously here) which permits the exercise of jurisdiction on the passive personality principle. In doing so, the Court considered whether the subsequent addition of Article 97 of UNCLOS (and Article 11 of the Geneva Convention) to the legal regime had rendered the decision in Lotus inapplicable. Thus, in deciding that this case did not involve an ‘incident of navigation’ under Article 97 (for example, a collision), the Chief Justice followed Lotus. Justice Chelameshwar, in his concurring opinion, discarded Article 97 on alternate grounds, i.e. Part VII of the UNCLOS (in which Article 97 figures) applies only to the high seas and not to the EEZ (a conclusion that can be, and has been, disputed).

Importantly, and perhaps this is a fact that escaped media interest, the Court did not decide the question of jurisdiction conclusively. Rather, it noted that this judgment “will not prevent the Petitioners herein in the two matters from invoking the provisions of Article 100 of UNCLOS 1982, upon question of jurisdiction of the Union of India to investigate into the incident and for the Courts in India to try the accused may be reconsidered.” (C)

Given the breadth of the judgment, I will offer only a few preliminary thoughts here. Onpoint A, the Court’s holding that neither Section 188A nor the Notification under the TW Act extended Kerala’s jurisdiction fails to enter several crucial debates, I have three comments. First, Section 188A – an amendment to the CrPC – was introduced by a Government Notification under Section 7 of the TW Act. In recognizing that such additions can be made only by Parliament, the Kerala High Court had disregarded Section 188A per se, but accepted the extension of Indian penal jurisdiction to the EEZ (based solely on the intention of the notification). However, while Section 7(7) permits the extension of any enactment to the EEZ, this is limited by Section 7(4) which recognizes the powers of the Union in the EEZ (along the lines of Article 56, UNCLOS). Crucially, the power to legislate for criminal conduct does not find a mention here (and this is so by design (Vol. III, pg. 61) and supported by subsequent state practice and judicial opinion). Second, as a matter of form, Section 7(7) permits the extension of the territorial scope of an enactment, rather than an amendment to the CrPC itself – the amendment of which should be dictated by Parliament alone. This is also important because of a distinction that the Court fails to recognize between Section 4, IPC/Section 188 CrPC and the facts of this case/Notification 671. The former permit prosecution of Indian citizens (on the active personality principle), while the latter dilute the principle to instances of passive personality jurisdiction (Indian national is the victim). The question then is not only of extending the scope of Indian penal jurisdiction territorially, but substantively, through executive action. Third, assuming the Indian union does have jurisdiction, the Court’s view that this does not extend Kerala’s jurisdiction does not appear appealing (though perhaps pragmatic from a diplomatic standpoint). This is because Notification 671 (on which the judgment relies) creates a deeming fiction which permits prosecution “as if it had been committed in any place in which he may be found”. Similar wording is found in Section 188 of the CrPC, and has been consistently held to allow the State in which the accused is found to continue prosecution (for example, Clara v. Tamil Nadu).

On point B, the Court considered the exclusion of Kerala’s jurisdiction proper as a matter of public international law. With respect, however, neither does public international law address the manner in which states structure their internal criminal processes, nor would any such rule apply since the Court (presumably) rejected the sovereign immunity defence, thus making the Italian marines liable as individuals and not representative organs of the Italian state.

On point C, the holding that international law permits the exercise of jurisdiction in this case, following Lotus, the Court’s conclusion is uncertain given the its remarks that Lotus has been watered down (paragraph 98; also see a previous post on this issue here, and the joint Separate Opinion issued by Judge Higgins, Koojimans and Burgenthal in Arrest Warranthere). In doing so, the Court failed to state whether international law permits such action (and if so, where may one find such a rule in the UNCLOS or under custom) or whether the absence of a prohibition suffices. In fact, the Court’s insistence on identifying the sovereign rights a state may exercise in the continuous zone was perhaps the incorrect question to begin with. This case does not involve the exercise of sovereignty (or more appropriately, jurisdiction) over an identifiable maritime space, but over the accused marines. This distinction is not one without reason: the exercise in this case is to identify whether public international law permits exercise of jurisdiction on the passive personality principle, which addresses the identity of the victims, and not the territorial space where the crime occurred.

Second, the Court’s handling of Article 100, UNCLOS is unclear. Not only does the text of Article 100 omit any reference to a redistribution of jurisdiction between states, but more fundamentally, omits any substantive obligation through the most generous of readings (the drafting history makes this conclusion clear, pg. 183). It seems then that the Court’s judgment relies too heavily on Article 100 for something that it does not address.

More generally, the Supreme Court’s judgment remains imprecise on the relationship between international law and (domestic) Indian law in such disputes. Ordinarily, it would be necessary to first identify a basis for exercising jurisdiction in Indian law (point A), and then proceed to test the validity of that determination against international law (point C), or use international law to colour the reading of domestic law. In addressing both questions together, the judgment perhaps sacrifices much needed clarity.

Apologies for the extended summer break (not for the lack of thoughts or developments, though).

Let’s begin with a recap of what’s been happening for India at the international stage over the summer:

The ICJ and Justice Bhandari’s election:

1. Justice Bhandari was finally sworn-in as a judge of the International Court of Justice on 19 June 2012 (right before the Diallo judgment was read). For those interested, here’s a photo of Justice Bhandari being sworn in, and a video of him making the (rather short) solemn declaration (the oath).

2. On the debate surrounding Justice Bhandari’s nomination (see this for some background), two main criticisms have been leveled against Justice Bhandari’s nomination by India for the ICJ. The first, as reflected here, argues that as a national judge with little or no real experience in international law, Justice Bhandari’s nomination by the Indian national group of the PCA reflected absurd decision making. From an international legal perspective, the underlying assumption of this view is thus: “a judge may be well-versed with domestic legal traditions, but one assumes that a Judge at the International Court of Justice, the principal judicial organ of the United Nations, responsible for adjudicating on questions of international law (Article 38), would possess knowledge of international law!” The second criticism, as argued by Arghya Sengupta in an OpEd in The Hindu, takes issue with the nomination of Justice Bhandari, a sitting Supreme Court Judge, by the government of India on grounds of undermining the independence of the Supreme Court Judge (Justice Bhandari). As much as I understand, and perhaps even agree with, some of the sentiments behind these arguments, I still disagree with several individual arguments inherent in these criticisms, especially in light of the rather inchoate state of the international legal profession in India. However, I’d save my thoughts on this for later.

3. I’ve blogged about a right to Information application seeking information on Justice Bhandari’s nomination earlier. In response, the Ministry of External Affairs denied some information on Justice Bhandari’s nomination on the ground that the RTI Act allows withholding information related to strategic interests of the country, and besides it would also affect canvassing for Justice Bhandari. Now, the Central Information Commission has asked the MEA to provide the requested information. Interestingly, the CIC has also asked for the Indian national group of the PCA to answer some of the queries (could an argument be made here that the national group is not a “public authority” for the purposes of the RTI Act?).

Moving on to the Enrica Lexie incident (covered previously here and here):

There’s been considerable discussion on the international legal aspects of the incident.

1. Duncan Hollis, over on Opinio Juris, takes a look at the incident through the prism of the SS Lotus case decided by the PCIJ.

2. A debate in The Hindu captures the essential position and arguments both for and against the jurisdiction of Indian courts over the Italian marines. Samir Saran and Samya Chatterjee argue that the Indian courts do not have jurisdiction. Prabir Purkayastha and Rishabh Bailey, referring to Article 97 of the UNCLOS and the SS Lotus judgment, argue that Indian courts “also” have jurisdiction over the incident (as opposed to exclusive jurisdiction of Italy). Finally, Samir Saran disputes the above interpretation of Article 97 and also makes a very interesting argument based on the Indian Merchant Shipping Act.

3. Meanwhile, and perhaps more importantly, Judge Gopinath of the Kerala High Court has rendered (a reasonably well crafted) judgment in the writ petition filed by the Italian marines arguing that Indian courts do not have jurisdiction. The Court ruled that the Indian courts can exercise jurisdiction over the Italian marines under the Indian Penal Code and the Code of Criminal Procedure as they were within India’s contiguous/exclusive economic zone. It addressed a number of other important matters such as the sovereign immunity of the marines (held no sovereign immunity), the “compatibility” of several national laws (including the SUA Act) with the UNCLOS (held are “compatible”), and the relevance of past precedence (the Raymund Genacio case — differentiated on facts). Particularly interesting is the Court’s interpretation of the UNCLOS. For example, in defining valid exercise of sovereign authority by India in the territorial-, contiguous-, and exclusive economic zones under the UNCLOS, it notes:

To hold that a coastal state has no right whatsoever to protect its nationals exercising their legitimate rights inside the coastal state’s CZ/EEZ, would be nothing but a total travesty of justice and an outrageous affront to the nation’s sovereignty. Such a view would mean that any day, any passing-by ship can simply shoot and kill, at its will, fishermen engaged in earning their livelihood; and then get away with its act on the ground that it happened beyond the territorial waters of the coastal state. Such a view will not merely be a bad precedent, but a grossly unjust one, and will go against all settled principles of law. (para. 33)

At the WTO:

1. On 25 June, the DSB established a Panel with standard terms of reference in the poultry dispute between the US (complainant) and India (DS430: India — Measures Concerning the Importation of Agricultural Products).

2. According to news reports, the US has threatened to challenge India’s compulsory license for Nexavar at the WTO. This comes after reports that India’s commerce minister had defended the WTO consistency of the license.

Bilateral Investment Treaties/Arbitration:

1. The Sistema dispute appears to be moving forward, with the six-month notice period nearing its end and the selection of a legal team by India. Several names have been suggested, including Mr. Rodman Bundy, Prof. Donald McRae and Senior Advocate A K Ganguli.

2. Several NGO’s have written a letter to Prime Minister Manmohan Singh expressing concern over the ongoing US-India BIT negotiations. Their main attack appears to be against investor-state dispute settlement provisions.

3. In Nepal, a breakaway faction of the Unified Communist Party of Nepal (Maoist) has said that it will work towards scrapping of the recently concluded BIT with India.

4. The latest on the Vodafone BIT dispute is that it is moving forward with India not agreeing to Vodafone’s demands. Reports suggest that Prime Minister Singh would soon take a decision on Vodafone’s plea “seeking an undertaking that the [retrospective] amendment would not apply to it.”

And, finally, here’s the quote of the summer by none other than India’s (“underachieving“) Prime Minister:

“there are no international solutions to India’s problems”

– Prime Minister Manmohan Singh, returning from his trip to Los Cabos for the G20 and Rio.

Following up on our discussion of the Enrica Lexie incident off the coast of Kerala, here’s an update on the latest developments:

1. As noted earlier, the detained Italian marines as well as the Italian consulate had filed a petition in the Kerala High Court for declaration that Indian courts did not have jurisdiction to try the Italian marines. The oral arguments in the matter are now over and the court has reserved its judgment. An indication of the Court’s mindset, however, can be gauged from its classification of the shooting by the Italian marines as an act of terrorism. From the jurisdictional perspective, this is very interesting because the Court has previously observed in another case (Raymund Gencianeo v.State of Kerala, 2004 Cri. LJ 2296, para. 6) that Indian courts have jurisdiction over criminal offences committed by foreigners only in India’s territorial waters. If, however, the act is treated as a terrorist act, instead of just a criminal act, it could be possible for Indian courts to exercise universal jurisdiction, irrespective of where the alleged crime occurred. (See this, for further discussion)

I am sure all are aware of the recent turn of events involving the Italian ship M/VEnrica Lexie off the Indian coast of Kerala. In this post, I will try to present a reductionist perspective of the problem and comment upon the relative strengths of India and Italy’s arguments, the eventual goal being to parse through the technical details that have been sporadically filtering through the media and elucidate the the basic legal framework which can then be applied to the facts as and when they become clearer.

Although the exact factual circumstances still remain clouded, a broad overview of the conflicting narratives by India and Italy is perhaps still in order. India claims that the fishing boat, St. Antony, carrying 11 unarmed crew reported being fired upon at 2150 hrs, 2 or 3 nautical miles off the coast of Kollam in Kerala. Of the 11 fishermen, 9 were sleeping and the two awake were shot. In total, India claims that 20 shots were fired by the two Italian marines. Moreover, India claims that no warning shots were fired by the marines, who took the fishing boat to be a pirate vessel. Italy, on the other hand, claims that at 1600 hrs, while navigating 33 nautical miles off the Indian coast, a twelve meters boat with six armed men was spotted approaching the Italian tanker. It kept nearing even after the soldiers showed their guns at which point they opened fire in the air and in the water and the boat turned away without any one being hit. Enrica Lexie immediately reported the incident to authorities in Rome. In addition, Italy also claims that the ship was tricked into coming to Cochin Port by a message from the Indian Coast Guard by reporting that they were holding a boat with arms on board, prospecting it could have been the one involved in the incident of the afternoon and inviting the Italian crew and marines to give their statements (see here, for example). For our purposes, I would only like to emphasize the different accounts of the position of the ship during the incident: Italy says that satellite data confirms that the ship was 33 nautical miles of the Indian coast, whereas India says it was 2-3 nautical miles off the Indian coast.

Current Situation

The situation, at the time of writing, is that the marines have been taken into custody by the local Indian police and have been sent to a 14 day judicial remand. A first information report has been filed against the Italian crew, and the Indian police have been on board the ship to gather evidence. The two marines have been charged with murder under the Indian Penal Code (IPC). Currently, the ship is docked in Kochi (apparently, parking space there seems quite expensive by even the most expensive car-park standards ~ 4 mil. INR). The Italians have reportedly also filed a habeas corpus petition before the Kerala High Court. Italian diplomats have been arriving in India on the clock, and have met the arrested marines. A senior Italian minister is expected to arrive in Delhi this week. Meanwhile, back in Italy, the authorities have started their own national investigations into the incident. Thus, the judicial processes have been set into motion in both countries, with India having a tangible advantage because of its custody of the marines.

Legal Disagreement

Getting into the legal issues, the disagreement between the two state seems to be centered around two issues: jurisdiction; and, diplomatic immunity. In this post, I hope to address the issue of jurisdiction, since the disagreement there concerns whether the Indian courts even have the power to try this case. This, therefore, is a preliminary issue that requires to be addressed first.

Jurisdiction under International Law

On the role and importance of jurisdiction (or the authority to decide on an issue) under international law of the seas, Natale Klien provides a concise explanation:

Law enforcement powers are essential to enable states to respond to maritime security threats. Although this point is simple enough in itself, the laws according states jurisdiction are complex because of the different rights and obligations recognized in the various maritime zones. The regulation of activities at sea is dependent on what authority states have in any given maritime area or over any particular vessel or installation or structure located at sea. The ability of a state to undertake law enforcement not only varies because of the different rights and duties existing in the different maritime zones, but also according to what particular threat to maritime security is being addressed. While there is a general interest in upholding order at sea, the accepted responses to achieve order have been countered by other interests, especially the importance of territorial integrity and the corollary of maintaining exclusive rights over vessels that are flagged to the state. This balancing act is constantly at stake in seeking to prevent and respond to maritime security threats. (Natalie Klein, Maritime Security and the Law of the Sea (OUP, 2011), p. 62)

She goes on to explain the nuanced picture of jurisdiction painted by International law: prescriptive jurisdiction refers to refers to the power to adopt legislation and other rules; and, enforcement jurisdiction refers to the power to give effect to those rules through police and/or judicial action. Moreover:

States are entitled to exercise jurisdiction on the basis of different connections that a particular activity might have with them. The bases of criminal jurisdiction most commonly recognized are territorial; nationality; passive personality; universal; and protective. Territorial jurisdiction entitles a state to regulate persons and activities within its territory. Nationality jurisdiction allows states to regulate the activities of persons who have the nationality of that state. On the basis of passive personality, a state may exercise criminal jurisdiction over a person who has committed offences that are harmful to nationals of that state. Universal jurisdiction refers to jurisdiction over particular activities that are considered so heinous (notably, piracy and war crimes) that all states may exercise jurisdiction over the perpetrators of those crimes irrespective of any other link a state may or (p. 63 ) may not have with the acts in question. Protective jurisdiction entitles states to exercise jurisdiction over activities considered prejudicial to the security of the state. As may be readily perceived, each of these bases of jurisdiction may be brought to bear in addressing maritime security threats, especially territorial, universal, and protective jurisdiction.

A state must lawfully exercise prescriptive jurisdiction in order for the possible exercise of enforcement jurisdiction to arise.

(FN omitted, emphasis supplied).

Can Indian Courts Try the Accused Italian Marines?

With this brief excursion into the concept of jurisdiction under international law, let us now turn back to whether international law provides Indian courts the jurisdiction to try the Italian marines for their alleged shooting of Indian fishermen. For our purposes, the relevant treaty is the UN Convention on the Law of the Seas 1982 (UNCLOS), to which India and Italy are parties, and the relevant Indian legislation isThe Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976.

The UNCLOS and the 1976 Act establish the following regime for the coastal state’s (here, India’s) jurisdiction:

Territorial Sea: breadth of of up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the UNCLOS. (Art. 3 UNCLOS) The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. (Art. 2 UNCLOS). For our purposes, the 1976 Indian Act in Section 3 provides that “[t]he sovereignty of India extends and has always extended to the territorial waters of India and to the seabed and subsoil underlying, and the air space over such waters.” Thus, the Indian Penal Code, under which the marines are charged, is an exercise of prescriptive territorial jurisdiction. In other words, India can exercise both prescriptive and enforcement jurisdiction in the territorial sea on the issue of security (taking the killing of fishermen to be this issue).

Beyond the territorial sea lies the contiguous zone, extending not beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. (Art 33, UNCLOS) The 1976 Indian Act also defines the contiguous zone as such. This is an interesting region because it marks a divergence in the prescriptive jurisdiction under the UNCLOS and the 1976 Indian Act. Art. 33 of the UNCLOS provides in part that a coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; and, (b) punish infringement of the above laws and regulations committed within its territory or territorial sea. The 1976 Indian Act adds one more item to the list of areas coastal states can exercise their prescriptive jurisdiction in by legislating rules: the security of India (Art. 5(4) 1976 Act). This is not a conflict, for the UNCLOS only states that a coastal State “may” legislate to regulate the two areas, and the Indian Legislation goes beyond and adds one to the list. Moreover, there is considerable state practice in support of states exercise prescriptive jurisdiction for security matters in the contiguous zone (see table on p.14 here, and Alan Vaughan Lowe and R. R. Churchill On the Law of the Sea, pp.116-118 here).

Interestingly, under the 1976 Indian Act, unlike for territorial waters, India does not have complete sovereignty over contiguous zones. Instead, under Section 5(4), the Central Government may exercise such powers and take measures in or in relation to the contiguous zone as it may consider necessary with respect to: (a) the security of India; and (b) immigration, sanitation, customs and other fiscal matters. For example, one exercise of prescriptive jurisdiction in the contiguous zone is Section 2(28) of the Indian Customs Act, which defines “Indian customs waters” as the contiguous zone, within which Indian customs authorities have the power to arrest people (104), stop and inspect any ship (106), and open fire if a ship fails to stop (115(1)(c). Contrary to this, to my knowledge, the Parliament has not legislated on the subject of security in the contiguous zone. In this regard, the Indian Penal Code does not say anything about its extension over contiguous zone, whereas the Central Government has the explicit authority to extend its application over this region (Section 5(4)(b) 1976 Act). Thus, for the purposes of Indian courts criminal jurisdiction, this would mean the exercise of extraterritorial jurisdiction.

Exclusive Economic Zone: The EEZ concept is an innovation of the UNCLOS at the international level. It is reflected in the 1976 Indian Act, as well, and extends to 200 nautical miles from the appropriate baseline. Within the EEZ, states have the prescriptive jurisdiction to regulate exploitation of economic resources, scientific research, marine environment and artificial structures. This too, then would imply the exercise of extraterritorial jurisdiction by Indian courts.

This then establishes the importance of the exact location of the incident. For if the shooting took place 2-3 nautical miles from the coast, as India claims, it would be within the territorial waters, and therefore Indian courts could exercise their territorial jurisdiction under the IPC and Code of Criminal Procedure (Cr. PC). If, however, the incident occurred beyond 12 nautical miles from the baseline, take the 33 nautical miles which Italy claims for example, Indian courts would be exercising their extraterritorial jurisdiction under the IPC and the Cr. PC.

As noted in the quote from Klein above, extraterritorial jurisdiction may be exercised on several basis. Indian law, that is, the IPC and the Cr.PC, allows the exercise of extraterritorial jurisdiction on the basis of nationality. Thus, Section 4 of the IPC provides, in part:

Extension of Code to extra-territorial offences.–The provisions of this Code apply also to any offence committed by– (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be.

If the incident occurred beyond 12 nautical miles Indian courts can only have jurisdiction over offenses committed by a citizen of India, or a ship registered in India. Since, in the present case, the accused are marines of Italian nationality and the ship is also registered in Italy (contrary to what Meghnad Desai seems to think, see this), Indian courts do not have the extraterritorial jurisdiction to try the marines. This could be a basis for the Italian writ petition in the Kerala High Court. In fact, in a prior case (Raymund Gencianeo v.State of Kerala, 2004 Cri. LJ 2296), the Kerala High Court has held that:

Since the case of the prosecution is that the occurrence took place when the ship was 850 miles away from seashore, even if that 850 miles is taken as nautical miles or land miles, it is clear that the offence is alleged to have been committed by a foreign national in foreign vessel outside the territory of India. The Indian Courts have no jurisdiction to try an offence which is alleged to have been committed by a foreign national in a foreign vessel outside the territory of India and hence the proceedings in the case are liable to be quashed. (para. 6)

The facts in that particular case involved a Philippine national, who was a crewmember of a Japanese vessel, being prosecuted for the offence punishable under Section 307 of the IPC, alleging that he attempted to commit murder of the Captain and Chief Officer of the ship while he was on board the ship, 850 miles away from the Kochi coast. The accused was arrested on 29.11.2002 and placed in judicial custody. While the case against him was pending before the First Additional Assistant Sessions Judge, Ernakulam, he sought to quash the proceedings by contending that the courts in India have no jurisdiction to try the case since the allegation is that a foreign national committed the offence in a foreign vessel while the vessel was outside the territory of India.

Returning to the present, nobody is claiming that the ship was 850 miles off the coast of India. Nevertheless, this judgment does seem to suggest that Indian courts can only exercise criminal jurisdiction over foreign nationals on foreign ships if they are within the territorial waters of India (12 nautical miles).

In sum, the location of the shooting incident is of utmost importance. If it is not within 12 nautical miles, going by the above account, the trial court in Cochin may not have jurisdiction over the alleged offense. Of course, this is qualified by the presence of any government regulation extending the IPC over the EEZ — something which to my knowledge doesn’t exist.

Assessing Indian Reactions

While researching on the facts for this post I came across an interesting Indian reaction on the jurisdiction issue in The Hindu:

But India points to Section 4 of the Indian Penal Code, which says any crime committed against an Indian or on an Indian vessel, “wherever it may be,” can be tried in India.

“So there is extra-territorial application of both Indian and Italian laws. We understand that but as representatives of India, we will go by the legal process here. There are differences with Italy on the facts, procedure and processes, but we are willing to engage with them. If they so desire, we will provide consular access to the two marines detained by the Kerala police,” official sources said.

Officials also admitted that both countries were facing an issue of this kind for the first time. “We are trying to come to grips with, and see how to go about, it.”

…

They felt that whether or not the ship was in India’s exclusive economic zone (EEZ) shouldn’t be made an issue. “Italy and India have the same clauses pertaining to extra-territorial jurisdiction. The ship was over 5,000 km away from the Italian coast. Don’t make an issue out of the EEZ aspect.”

However, as we have seen above Section 4 of the IPC does not say that “any crime committed against an Indian or on an Indian vessel, “wherever it may be,” can be tried in India.” Instead, it says that crimes committed by Indian nationals, or by foreign nationals on vessels registered in India can be tried in India. Moreover, the last part of the above quote makes little sense. The fact that the incident occurred in the EEZ is of prime importance. Just because the ship was closer to India than Italy does not give India the jurisdiction to try the marines. Indeed, if the incident did occur in the EEZ, Indian courts may well not have the power to try the case.

What next?

Considering the worst case scenario for India, that the incident did occur beyond 12 nautical miles and outside India’s territorial waters. If India sticks to its stand to prosecute the marines under Indian law and in Indian courts (the Indian Defense Minister recently suggested this), Italy could possibly take up the matter on the International level, by submitting a dispute to the International Tribunal for the Law of the Sea, or some other international court or tribunal by consent.

If the matter does go to an international court, it may be useful to recall what the ITLOS has said on a similar issue in the past in the M/V ‘Saiga’ (No. 2) case:

The ITLOS decision in M/V ‘Saiga’ (No 2) provides some indication that states may not seek to enforce laws that are not specifically related to coastal state rights in the EEZ. In that case, the M/V ‘Saiga’, an oil tanker sailing under the flag of Saint Vincent and the Grenadines, entered the EEZ of Guinea to supply fuel to three fishing vessels. Guinean customs patrol boats arrested the vessel outside of Guinea’s EEZ and subsequently detained the vessel and crew members. Guinea asserted that the arrest of the M/V ‘Saiga’ had been executed following a hot pursuit motivated by a violation of its customs laws in the contiguous zone and ‘customs radius’ of Guinea. Under Guinea’s Customs Code, the ‘customs radius’ extended 250 kilometres from its coast. Saint Vincent and the Grenadines maintained that Guinea was not entitled to extend its customs laws to the EEZ and that the Guinean action had interfered with the right to exercise the freedom of navigation as the supply of fuel oil fell within ‘other internationally lawful uses of the sea related to’ the freedom of navigation. The Tribunal determined that the application of customs laws to parts of the EEZ was contrary to UNCLOS. From this case, it seems that coastal states’ enforcement powers in the EEZ are therefore not likely to be recognized as lawful beyond those relating to the activities over which coastal states are specifically attributed jurisdiction or sovereign rights. (Klein, p. 89; FN omitted)

After all this legal analysis, if there’s any certainty, it is on the importance of the exact location where the Italian marines on board MV Enrica Lexie allegedly shot the Indian fishermen. Once that is ascertained, however, a definitive legal answer on whether Indian courts have the jurisdiction over the alleged crime can be given. All this, of course, if I am not overlooking an Indian legislation that extends the criminal jurisdiction of Indian courts beyond the 12 nautical miles — feel free to weigh in.

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